Simao Paxi-Cato, barrister at Invictus Chambers, reviews the further guidance provided by the Employment Appeal Tribunal as to application of the public interest test in whistleblowing cases involving allegations of breach of contract.
In Underwood v Wincanton Plc UKEAT/0163/15/RN, the Employment Appeal Tribunal allowed an appeal against the strike-out of the Claimant’s claim that he had made a protected disclosure concerning breaches of contract. The basis of the strike-out decision in the lower court was that since this was a contractual dispute (although it involved a group of employees), it could not satisfy the public interest test under s.43B(1) Employment Rights Act 1996.
By the time this matter came to appeal, the EAT had given judgment in Chestertons v Nurmohamed  IRLR 614, covered in my earlier blog: “The Public Interest in Whistleblowing – Chesterton Global Ltd & Anr v Nurmohamed”. It was found that the decision below was inconsistent with Chesterton and that pending the appeal in that case, which is set to be determined by the Court of Appeal in October 2016, employment tribunals should continue to follow the principles in Chesterton in trying whistleblowing claims.
Mr Recorder Luba QC also suggested that as a matter of best practice, where there is a dispute about whether an employee had a reasonable belief that their disclosure was in the public interest at a preliminary hearing, the tribunal should direct the filing of evidence from the claimant as to the circumstances of their belief.
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Reproduced with the kind permission of Invictus Chambers.